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S32 Step By Step Guide

Keeping Charges in the Local Court

As of June 2012, there are no provisions for making Section 32 applications in the higher courts. Keeping a matter in the Local Court will allow a section 32 application to be made for eligible clients. What could be regarded as naive behaviour on the part of people with intellectual disability sometimes results in a criminal charge. Unfortunately, some of these charges will be headed for the higher courts unless the charge negotiation process can be successfully undertaken.

Some of your client's subjective features that flow from his or her disability will be a key element in the charge negotiation process. If you have supporting documentation of your client's disability, consider supplying a copy to the DPP.

    In cases of more serious charges that are to be finalised in the District Courts, charge negotiation should be considered with a view to persuading the prosecution:
  • to withdraw the charges
  • to proceed on a less serious charge that can be finalised in the Local Court to allow potential diversion under section 32
  • to not elect or to withdraw election for matters to be dealt with in the District Court

Negotiations should begin before committal for trial or sentence but only after a thorough reading of all available materials such as the court attendance notice, the facts and the brief, if available.

Written applications for withdrawal of charges or charge negotiations should be prepared with reference to the Office of the Director of Public Prosecutions' (DPP) Guidelines available at

    Prosecution Guideline 4 sets out three tests as follows:
  • Test 1: Prima facie case test
  • Test 2: Whether or not 'it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law'.
  • Test 3: Consideration of many factors, including whether the offence is of a trivial nature, whether prosecution would be counterproductive, whether there are special circumstances that would prevent a fair trial from being conducted, the availability and efficacy of any alternatives to prosecution, the degree of culpability of the alleged offender in connection with the offence, and special disability of the alleged offender.

In some instances, a particular factual scenario may give rise to numerous potential charges. Often the most serious charge available will have been laid. It is important to consider the elements of each charge and to consider what alternative, less serious charges are available. If you have reports or support plans available, consider whether or not it would be of assistance to supply them to the prosecution as part of the charge negotiation process. Negotiations are most likely to be successful in cases where the objective seriousness of the alleged offence is low and there are strong subjective features of your client that point to the suitability of diversion, rather than charges being dealt with at law.

Table 1 and Table 2 are contained in Schedule 1 of the Criminal Procedure Act 1986 (NSW)

If the charge is a Table 1 or Table 2 offence, then negotiations should be conducted with a view to asking the prosecution not to elect to have the matter dealt with in the District Court, thereby having the matter finalised in the Local Court.

If the charge is a strictly indictable charge, then negotiations should be directed at persuading the DPP to substitute an alternative charge. (See Prosecution Guideline 20. at

(For more information generally on the topic of charge negotiation, see the NSW Young Lawyers' Practitioners Guide to Criminal Law available online at It is a valuable resource that is both clearly written and practical.)

Further reading - IDRS case study A case for charge negotiation - 'Darren'

Negotiations with Police?Getting evidence, services, support plan

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